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The Framework Convention on Tobacco Control

Our views on global tobacco control treaty’s key issues

From 7-12 November 2016, representatives from 180 national governments gathered in Delhi to discuss global tobacco control policies. A number of important issues were on the agenda and our views on these are explained here.

The World Health Organization Framework Convention on Tobacco Control (FCTC) is a global treaty on tobacco control. It came into force in 2005 and contains provisions aimed at reducing tobacco consumption and toxicity. The treaty’s articles contain benchmark standards on the production, distribution, sale, promotion and taxation of tobacco products.

To date, the FCTC has been ratified by 180 countries. These countries comprise the Conference of the Parties (COP), which serves as the governing body of the FCTC. Sessions of the COP take place every two years and result in recommendations on how countries can implement treaty provisions.

The seventh COP took place from 7-12 November 2016 in Delhi, India, and was attended by government representatives from around the world as well as members of both accredited intergovernmental organisations (IGOs) and non-governmental organisations (NGOs).

Among a number of issues, delegates discussed tobacco product design features, approaches to the regulation of Electronic Nicotine Delivery Systems (otherwise known as electronic cigarettes) and the rights of regulators to seek input from the tobacco industry.

British American Tobacco supports the regulation of tobacco products and aims to work with governments and policymakers to arrive at regulatory solutions that are based on robust evidence and consultation, that respect legal rights and deliver on intended outcomes.

We are transparent about our views regarding key issues discussed at COP7 and have included a summary of these views below.

In addition, our Principles for Engagement provide clear guidance for how we share and communicate our positions with regulators, politicians and other third parties.

Transparency and participation

FCTC Article 5.3 addresses the relationship between the development of health policy and the tobacco industry. It states in its entirety:

"In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law."

This treaty provision is often referenced as justification to exclude the tobacco industry from engagement with policymakers. However, neither it nor subsequent FCTC recommendations prohibit industry-government interaction and most national laws and practices require an inclusive consultation process during the development of regulation.

We believe that the industry has a constructive and expert role to play in the development of effective regulation. Article 5.3 is best championed by principles of good governance and better regulation, particularly those promoted by the Organisation for Economic Cooperation and Development (OECD) . These principles support the transparency, inclusivity and integrity of the regulatory process and, by doing so, protect policymaking from the undue influence of vested interests.

Electronic nicotine delivery systems (ENDS)

In the context of fast-growing consumer interest in ENDS (also known as electronic cigarettes or e-cigarettes), the World Health Organization was mandated to provide a report at COP7 on possible regulatory approaches to this new product category.

We believe that any approach to the regulation of Electronic Nicotine Delivery Systems (ENDS) and Electronic Non-Nicotine Delivery Systems (ENNDS) should acknowledge the fact that these devices are not tobacco products and that their reduced risk potential – when compared with combustible cigarettes - means that they should be subject to a separate set of regulatory measures. Accordingly, the regulation of ENDS should not stifle consumer communication and product innovation and should mandate product standards in order to ensure consumer safety.

In addition, while Tobacco Heating Products may have the potential to offer reduced risk, they are tobacco products and should not be classified as ENDS. As the science on those products evolves we will be able to better quantify their risk profile when compared with conventional cigarettes and recommend regulation that takes into account any reduced risk potential.

Product design features, contents and emissions

FCTC Articles 9 and 10 are concerned with the testing, measurement and regulation of the contents and emissions of tobacco products. At COP7, a Working Group presented draft recommendations regarding addictiveness, product design features and testing.

We believe that investigation into the complex nature of addictiveness is valuable and that related work-streams should focus on factors that directly influence addiction, including individual smoking behaviour. But until this research is carried out and definitions and testing methods have been agreed regarding the contents and emissions of cigarettes, proposals concerning the regulation of addictiveness and product design features are premature.

In addition, we do not believe that proposals to restrict product design features such as capsules and slim cigarette formats are supported by relevant and rigorous evidence. Regulation should be developed on the basis of the impact of design features on both measured toxicity and/or smoking prevalence.

Industry liability

FCTC Article 19 addresses the imposition of legal liability on the tobacco industry. We believe that in order to respect the national legal system of each of the FCTC Parties, any related recommendations must recognise that the autonomy of national legal systems will prevail in the event of conflicting approaches. This is acknowledged by FCTC Article 4.5, which states in its relevant part that ‘issues relating to liability... [are] determined by each Party within its jurisdiction...’.

Dispute settlement

FCTC Article 27 outlines an existing pathway for the resolution of disputes through diplomatic channels.

We believe that the creation of additional mechanisms for the settlement of FCTC disputes is unnecessary. The implementation of FCTC provisions is the purview of national governments and is unlikely to bring rise to international disputes. As a result, there is no need to create an international body to settle unlikely disputes that to this day have not arisen.

Trade and investment

Trade and investment agreements already enable countries to regulate in the interest of public health while simultaneously protecting the investment rights of private enterprises against discriminatory or unfair state actions. Recent investment arbitration awards demonstrate that international trade and investment rules pose no threat to tobacco control measures.

We do not believe that any further action is necessary by the FCTC Secretariat or the COP to ensure that governments can take measures to further their public health goals.